Western National Mutual Ins. Co. v. UND

20010118

Western National Mutual
Insurance Company, Plaintiff and Appellant
v.
University of North Dakota, Defendant and Appellee

Appeal from:

District Court, Northeast Central Judicial District, Grand Forks County
Judge M. Richard Geiger

Nature of Action:

Insurance

Counsel:

Appellee:		Sara Gullickson McGrane , Spec. Asst. Atty. Gen.
Appellant:		Serkland Law Firm
Appellant:		Lawyer not licensed in N.D.

Term:

01/2002 Argument: 01/29/2002 02:45pm

ND cite:

2002 ND 63

NW cite:

643 N.W.2d 4

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Issues:

Appellant's Statement of the Issues:
1. Did Western National's Boiler and Machinery Policy exclude damage caused by flooding?
2. Did the Trial Court err in holding that the concurrent cause provision in Western National's policy is unenforceable?
3. Was there sufficient evidence to support the jury's determination that UND's flooded basements were not caused by the Flood of 1997?
4. Did the Trial Court make certain erroneous decisions at trial which warranted a new trial?
5. Did the Trial Court make certain erroneous decisions at trial with respect to the following issues warranting a new trial?
a. UND's counsels' mention of reinsurance.
b. UND's failure to supplement expert discovery responses.
c. Court's failure to give proximate cause instruction.
6. Was UND's damage amount ever made certain prior to trial in order to allow it to recover pre-judgment interest?
7. Is UND entitled to recover its attorneys' fees?

Appellee's Statement of the Issues:
Did Western National's insurance policy exclude from coverage damages from sewer backup?
Did the district court abuse its discretion in applying the doctrine of efficient proximate cause?
Was the jury's finding that flooding was not the efficient proximate cause of UND's damage manifestly against the weight of the evidence?
Did the district court abuse its discretion in denying Western National's motion for a new trial based on proper trial/evidentiary rulings?
Did the trial court abuse its discretion in not granting motion for judgment as a matter of law on the award of interest pursuant to N.D.C.C. 32-03-04?
Did the trial court abuse its discretion in awarding UND attorneys fees in successfully defending against a declaratory judgment action initiated by their insurer?

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Docket entries:

1	05/08/2001	NOTICE OF APPEAL: 05/07/2001
2	05/08/2001	ORDER FOR TRANSCRIPT: 05/07/2001
3	05/08/2001	Faxed letter dated 5-08-01 from Steven A. Johnson stating that neither he nor his law firm will be
4	05/08/2001	associating w/firm of Gislason, Martin & Varpness or otherwise representing Western Natl.
5	05/08/2001	Mutual Ins. Co. in this appeal
6	05/08/2001	Affidavit of James T. Martin in Compliance with Rule 11.1, Rules of Court
7	05/09/2001	Original letter dated 5-08-01 from Steven A. Johnson
8	05/25/2001	Notice of Appearance from Ronald H. McLean of Serkland Law Firm as ND counsel for Appellant
9	06/04/2001	RETENTION OF RECORD ON APPEAL: 08/04/2001
10	06/15/2001	Request for advance payment of transcript fee (Margaret Campbell)
11	06/25/2001	MOT. EXT/TIME TRANSCRIPT
12	06/25/2001	ACTION BY TRIAL COURT. Granted: 08/04/2001
13	08/01/2001	MOT. EXT/TIME APPELLANT BRIEF
14	08/01/2001	ACTION BY CLERK. Granted: 10/15/2001
15	08/04/2001	TRANSCRIPTS (11 VOLUMES) DATED October 24, 2000, October 25, 2000, October 26, 2000, October 27,
16	08/04/2001	2000, October 30, 2000, October 31, 2000, November 1, 2000, November 2, 2000, November 3, 2000,
17	08/04/2001	November 6, 2000, January 23, 2001
18	08/06/2001	DISK - TRA's filed 8-4-02, 11 Volumes, 3 disks
19	08/10/2001	Affidavit of Service for Transcripts filed 8-4-01
20	08/20/2001	RECORD ON APPEAL (4 vols.), Exhibts & Depositions (8) Not rec'd: #62 (Return Receipts); 140 (Pl's
21	08/20/2001	Exh. 1--large photo); 143(Pl's Exh. 3--large map);225(Def's Exh. 306--large diagram); & 227(Def.'s
22	08/20/2001	Exh. 309--large map)
23	10/11/2001	MOTION FOR EXTENSION OF PAGE LIMITS (via fax)
24	10/11/2001	ACTION BY CHIEF JUSTICE (Western Nat'l may have additional 1750 word; equivalent to 7 pages). Granted
25	10/15/2001	APPELLANT BRIEF
26	10/15/2001	APPELLANT APPENDIX
27	10/25/2001	DISK - ATB
28	11/05/2001	MOTION FOR EXTENSION OF PAGE LIMITS FOR AEB (FAXED COPY)
29	11/06/2001	ACTION BY CHIEF JUSTICE (UND granted 1750 add'l words for AEB). Granted
30	11/07/2001	Original of Motion for Ext of Page Limits for AEB
31	11/13/2001	APPELLEE BRIEF
32	11/13/2001	APPELLEE APPENDIX
33	11/15/2001	DISK - AEB
34	11/21/2001	MOT. EXT/TIME REPLY BRIEF & Affidavit of Timothy G. Richard (Faxed copies)
35	11/21/2001	ACTION BY CLERK. Granted: 12/07/2001
36	11/23/2001	Original Motion for Ext/Time/RYB & Aff/Support (Same as faxed copies filed 11-21-01)
37	11/23/2001	Corrected TOA & page 13 for AEB
38	11/23/2001	DISK - AEB
39	11/26/2001	UND's Response to AT's Motion for Extension of Time (faxed copy)(objection noted)
40	11/28/2001	ACTION BY CHIEF JUSTICE (extension will not be overturned). Denied
41	11/29/2001	Orig. and 7 copies of UND's Response to AT's Motion for Extension of Time
42	12/07/2001	REPLY BRIEF of Appellant
43	12/11/2001	DISK - RYB
44	01/02/2002	Request for Radio/TV Coverage (AP) (e-mail dated 1-02-02 from Dale Wetzel) (APPROVED)
45	01/24/2002	Letter from Sara Gullickson McGrane of 1-24-02, with cy of District Court Memorandum Opinion &
46	01/24/2002	Order Granting Partial Summary Judgment and Granting Motion to Amend (distributed to the Court)
47	01/29/2002	APPEARANCES: Ronald H. McLean & Timothy G. Richard, James T. Martin; Sara Gullickson McGrane and
48	01/29/2002	Julie A. Evans, General Counsel for UND
49	01/29/2002	ARGUED: McLean; Gullickson
50	01/29/2002	ORAL ARGUMENT WEBCAST
51	04/16/2002	DISPOSITION: AFFIRMED
52	04/16/2002	UNANIMOUS OPINION: Sandstrom, Dale V.
53	04/16/2002	Costs on appeal taxed in favor of appellee
54	04/19/2002	Order/Judgment Mailed to Parties
55	05/10/2002	MANDATE
56	06/10/2002	Corrected Opinion Pages 5, 13 & 14
57	05/15/2001	RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
58	08/20/2007	EXPUNGED - Nonpermanent record items destroyed

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